SZVRL v Minister for Immigration

[2016] FCCA 2700

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVRL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2700

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision –Applicant found to be a witness of truth but Tribunal considered relocation – whether applicant could relocate in home country – whether Tribunal considered objections to relocation – whether the applicant was afforded natural justice – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 422B, 424A, 425, 476

Cases cited:

SZATV v The Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

Applicant: SZVRL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3220 of 2014

Judgment of: Judge Nicholls

Hearing date: 16 September 2016

Date of Last Submission: 16 September 2016

Delivered at: Sydney

Delivered on: 16 September 2016

REPRESENTATION

Applicant: In person

Solicitors for the Respondents:  Sparke Helmore

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 19 November 2014 and amended on 31 March 2015 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3220 of 2014

SZVRL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), made on 19 November 2014 and amended on 31 March 2015, seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which on 27 October 2014 affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed and tendered into evidence by the Minister (“the Court Book” - “CB”, “RE1”).  I also have before me written submissions filed (on 9 September 2016) and served by the Minister.

Background

1. The factual background to the applicant’s claims to protection in this country are conveniently set out in the Minister’s written submissions. I am satisfied, having regard to the evidence before the Court, that the Minister’s submissions are a fair and accurate summary of the relevant background. For convenience, I adopt what was relevantly said in the Minister’s written submissions at [2] - [15]:

   “[2] The applicant is a national of Pakistan (so the Tribunal found at Court Book (CB) 227 [29]).

   [3] The applicant arrived in Australia on 7 October 2012 (CB 84).

   [4] On 21 July 2011, the applicant married a Malaysian woman (CB 227.7) who had a son from a previous marriage (CB 223[2]).

   [5] On 27 September 2013, the applicant (who was the second applicant before the Tribunal), his wife (the first applicant before the Tribunal) and her child (the third applicant before the Tribunal) (hereinafter collectively referred to as the visa applicants) made an application for a Protection (Class XA) visa. The applicant and his wife made separate protection claims. The applicant’s claims were set out in a written document (CB 28‑29).

   [6] In essence, the applicant claimed to fear harm in Pakistan for having married his Malaysian wife at a time he was engaged to be married to a girl from his (Pathan) tribe in Pakistan, that being an arranged engagement/marriage (CB 28 – 29).

   [7] On 12 March 2014, a delegate of the Minister refused to grant the visa applicants a protection visa (CB 162 – 163).

   [8] On 4 April 2014, the visa applicants applied to the Tribunal for a review of the delegate’s decision (CB 183), having appointed their migration agent as their authorised recipient (CB 182).

   [9] On 5 April 2014, the applicant’s wife and her son left Australia (CB 223 [7]).

   [10] On 21 August 2014, the Tribunal invited the applicants (by their authorised recipient) to attend a hearing at which to give evidence and present arguments in connection with their review (CB 192 – 196).

   [11] On 3 September 2014, the Tribunal notified the visa applicants (by their authorised recipient) of a change to the hearing date (CB 202-205). The visa applicants did not reply to the invitation.

   [12] On 19 September 2014, the applicant attended the hearing. His wife and her child did not (CB 223[7] and [28]).

   [13] On 23 September 2014, the Tribunal wrote to the visa applicants (by their authorised recipient) to invite them to comment on information that it considered would be, subject to their comments, the reason or part of the reason for affirming the decision under review (CB 206-209). The information in question was that the first and third visa applicants had departed Australia on 5 April 2014 and were therefore, by reason of the operation of s36(2) of the Migration Act 1958 (Cth) (Act) not eligible for the grant of a protection visa (CB 223[7]).

   [14] On 16 October 2014 the authorised recipient replied (CB 201-211) indicating that:

   (a) The applicant’s wife and her child had departed Australia;

   (b) The wife as the first visa applicant no longer sought protection; and

   (c) The applicant wished to proceed with his application for a protection visa as the sole review applicant.

   [15] On 27 October 2014 the Tribunal notified the visa applicants (by their authorised recipient) of its decision (made that same day) to affirm the delegate’s decision to refuse the grant of the protection visas (CB 221-231).”

2. The Minister’s written submissions also set out a summary of the Tribunal’s analysis, and its findings.  Having regard to the evidence, that is, the Tribunal’s decision record, I am satisfied the Minister’s summary is fair and accurate. I also adopt [16] - [18] of the Minister’s written submissions for the purposes of this judgment.

   “[16] The Tribunal’s findings and reasons are set out in the decision record at CB 223-231.

   [17] The Tribunal:

   (a) Noted the non-attendance of the first and third visa applicants (CB 223 at [7]) and that, on the basis of their departure from Australia, they did not satisfy the requirements of s 36(2) of the Act that they be in Australia, and could not be granted protection visas (CB 223 at [8]). Accordingly the Tribunal affirmed the delegate’s decision in respect of the first and third visa applicants (CB 223 at [9]).

   (b) Found the applicant to be a witness of credit who gave his evidence carefully and noted that his evidence was broadly consistent and generally supported by country information (CB 226-227 at [29]). The Tribunal accepted much of the applicant’s evidence as to his background (set out in point form at CB 226-228 [29])

   (c) Accepted that the applicant was outside his country of origin (CB 228 at [31]) and that the feared persecution (CB 228 at [32]). The serious harm and systematic discriminatory conduct was expressly found by the Tribunal to consist “of being physically attacked and possibly killed by members of his fiancée’s  family” (CB 228 at [32]).

   (d) The Tribunal also accepted that the persecution feared was for a Convention reason, being membership of a particular social group of either ‘participants in arranged marriages’ or ‘parties who do not agree to complete arrangement marriages’ (CB 228 at [33] to [34]). The Tribunal accepted that the applicant’s fear was well-founded (CB 228-229 at [35]).

   (e) Having accepted that the applicant had a well-founded fear of persecution by reason of his membership of a particular social group, and that harm would be from the family members of his former fiancée, it was bound to considered relocation[1], which was discussed with the applicant at the hearing (CB 229 at [37]).

   (f) Considered independent country information regarding the viability of internal relocation in Pakistan (CB 229 at [39]).

   (g) Did not accept as credible the assertion that the family of the applicant’s former fiancée would know he had returned to Pakistan, much less relocated to a major city     (CB 230 at [39]).

   (h) Found that it was not unreasonable for the applicant to relocate. The Tribunal had regard to the applicant’s level of education, his language skills (noting he speaks, reads and writes English and Urdu) and that he had demonstrated an ability to relocate to both Malaysia and Australia (CB 230 at [39]).

   (i) Concluded that in all the circumstances  it would be reasonably practicable for the applicant to relocation from Rawalpindi, thereby avoiding his ex-fiancée’s family and in doing so that he would not face any appreciable risk of persecution or other significant harm (CB 230 at [40]).

   [18] Considered complementary protection, but found that relocation was open to the applicant and that therefore, he did not satisfy the s 36(2)(aa) criterion (CB 230 at [41] to [43]).”

   [Errors in original.] [Footnotes renumbered.]

   [1] See Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440-441

The Application Before the Court

1. The applicant was given the opportunity, by orders made by a Registrar of the Court on two occasions, 11 December 2014 and 24 June 2015, to file any amended application, evidence and any written submissions. The applicant has filed an amended application. Nothing else was filed by him in this matter. The matter was set down for final hearing today of the applicant’s application as amended.  When the matter was called today, the applicant appeared in person, and was assisted by an interpreter in the Urdu language.  The Minister was represented by a solicitor.

2. The grounds of the amended application are numbered one and four.  Both have particulars to explain the grounds.  The applicant also explained that the omission of references to grounds two and three was a typographical error and that he pressed two grounds as set out in that amended application.

3. The grounds are in the following terms: 

   “Ground 1

   The Tribunal made a procedural error by not correctly assessing information relevant to the applicant’s particular circumstances.

   Particulars

   The Tribunal rejected the applicant’s claim for protection based on the assumption that the applicant could relocate within Pakistan. Having accepted that the applicant satisfied all other criteria relevant for the grant of protection in Australia, the Tribunal did not accept that the applicant cannot relocate despite clear evidence to the contrary by the applicant. The applicant restates his reasons below.

   1. The applicant states that his main obstacle for relocation is his language issue. The applicant speaks Pashto, which is not used in other parts of Pakistan. The applicant states that he does not speak perfect Urdu as people in Karachi or Islamabad. The applicant states because he speaks Pashto, and that his Urdu accent is different, he is easily recognised as a migrant in other states. The language issue often discriminates persons such as the applicant in seeking employment, accommodation as people are reluctant to hire and/or lease out to such people. The applicant states this fact is aggravated by the fact that the extremist group Taliban speaks Pashto, and thus, the applicant could be mistakenly identified as one such in other cities. This could lead to him being isolated, even targeted by those who hate Taliban.

   2. The applicant states there is so much violence in Pakistan in the form of religious extremism, political rivalry and criminal activity by various groups. In these circumstances, the applicant submits, that it is unsafe for him to migrate to another state, where he cannot integrate into mainstream society due to his language issue. If he is to be spend his time in isolation, that could be dangerous with people suspecting him to be allied to groups such as Taliban, with his dialect, upbringing and his lack of knowledge   of the main stream society in Islamabad and   Karachi as he has spent a secluded life in his tribe.

   3. The applicant states that his fear of persecution still continues. Honour killings are part of his tribal traits. His fiancée is still unmarried at 27 years, unable to marry because she was given in marriage to the applicant when they were quite young. In his tribe, this marriage is well-known, and the arrangement was recognised as a communal get-together of families. The applicant chose to abandon his fiancée, whom he promised to marry for which her family is extremely angry. Now it is an issue of regaining family honour, family pride for a wrong committed by the applicant. The applicant states in these circumstances, he has no escape in other cities of Pakistan, where he is easily identifiable due to his language issue. Moving to another city increases his risk due to the facts mentioned in paragraphs 1 and 2.

   4. The applicant states he cannot seek relocation in Malaysia as his wife (the first applicant in the initial application) has already left him, with her son. It is unlikely that the relationship between the applicant and his wife will resume.

   Ground 4

   The applicant was not afforded natural justice.

   Particulars

   The applicant states that his legitimate expectation to seek protection in Australia was denied by the decision of the Tribunal. The applicant believes this is due to the fact he did not have an opportunity to have his case heard by an impartial decision-maker. The applicant felt that in certain situations, the Honourable Tribunal Member has prejudged his case not allowing the applicant's evidence to prevail. Thus not taking into account relevant considerations and taking into account irrelevant considerations.”

Consideration

1. It was quite clear that, when given the opportunity to make submissions to the Court to explain the first ground, the applicant had not understood the nature of the proceedings that he has sought to institute and prosecute before the Court.  As I explained to the applicant, this Court has no power to intervene to grant him a protection visa, even if the Court were to accept all of his claims to protection, or even some of his claims to protection.

2. As I explained to the applicant, the role of the Court, and the power of the Court, is limited to the question of whether, in making its decision, the Tribunal fell into some legal error. That is, a jurisdictional error.  As I also explained to the applicant, the Court is unable to reconsider the merits of his claims to protection.

3. The applicant confirmed that he had received some legal advice and assistance in the drafting of the grounds of his amended application. However, it is clear that that advice, and assistance, was focused on a repetition of some of the applicant’s claims before the Tribunal, rather than any proper assertion of jurisdictional error on the part of the Tribunal.

4. There are two discernible elements to ground one of the amended application.  The first is that it is a challenge to the Tribunal’s findings and conclusion that the applicant could safely relocate within his home country.  As is clear, and as is set out in the Minister’s written submissions, the essence of the Tribunal’s decision was that it accepted that the applicant was a witness of credit, and it accepted that he would face harm in his home area if he were to return to his home country.

5. However, the Tribunal found, having regard to relevant legal authorities as to how to conduct the relevant assessment, that the applicant could reasonably and practicably relocate to another part of his home country, and thereby would not be said to suffer serious or significant harm in relation to the whole of his home country.

6. In that light, the second element in the applicant’s ground is a restatement of the applicant’s objections that he put to the Tribunal including, his difficulties in being able to relocate within Pakistan. 

7. On the evidence before the Court, and having regard to the Tribunal’s decision record, I find that the Tribunal correctly stated the relevant legal test as to the matter of relocation.  In particular, I have regard to what the Tribunal said at [36] of its decision record (at CB 229):

   “Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights.”

8. The Tribunal properly and correctly used the relevant language to explain the test as was derived from the High Court’s judgment in SZATV v The Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18. The relevant test is one of, in the circumstances, whether it is reasonable and practicable for the applicant to relocate. As was said by Gummow, Hayne and Brennan JJ in the High Court:

   “[24] … What is ‘reasonable’, in this sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”

9. At [37] (at CB 229) of its decision record, the Tribunal reports that at the hearing with the applicant it asked him about the matter of relocation to other parts of Pakistan.  Then continuing in [37], [38] and [39] (at CB 229 to CB 230), the Tribunal set out its consideration of the elements that it said arose in the applicant’s circumstances to consider whether relocation was reasonable and practicable for the applicant.  The evidence before the Court reveals that the Tribunal did ask the applicant about his objections to relocation and considered these objections in the sense required by SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (see [37] at CB 229 to [39] at CB 230).

10. The Tribunal took into account country information provided by the Australian Department of Foreign Affairs and Trade about the relevant conditions and circumstances in Pakistan ([38] at CB 229 to CB 230).  Based on that information, the Tribunal rejected the applicant’s claim that his “fiancée’s” family would know that he had returned to Pakistan, and would find him, and kill him if he were to relocate to Karachi, which was a city of twenty three and a half million people, over 1400 kilometres away from his home area ([37] at CB 229).

11. The Tribunal also found it was not unreasonable for the applicant to relocate within Pakistan, given he was educated, resourceful, able to speak, read and write in Urdu and English, and had family support in Pakistan. He had demonstrated his ability to live and work in different environments as he did so in both Malaysia and Australia ([39] at CB 230).

12. While the Tribunal accepted that the applicant would face serious and significant harm if he were to return to his home area, its conclusion that the applicant could nonetheless relocate and thereby not be subject to the risk of serious or significant harm, was a conclusion that was reasonably open to the Tribunal to make on what was before it.

1. The Tribunal found that the applicant’s fear of harm was localised to his home area and not relevant to all of Pakistan.  As was said by the High Court in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 at [25]:

   “The factum upon which the principle of relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm.”

2. In the current case, the applicant’s fear was said to emanate essentially from one specific source. That is, the family of the woman that the Tribunal described as the applicant’s “fiancée”.  On the evidence before the Court, the Tribunal considered and explained why this was not a well-founded fear, or that the source of this fear did not lead to a well-founded fear in relation to Pakistan as a whole.

3. The claimed fear, which the Tribunal accepted was well-founded in his home area, emanated from what can be described as non-State agents.  In that light the Tribunal, on the evidence, did consider and reject whether it was likely that the non-State actors, that is, the “fiancée’s” family, were likely to pursue the applicant and find him in Karachi.

4. Given the Tribunal’s finding in that regard, it was not otherwise necessary for the Tribunal to go on and consider any question of State protection. In light of the findings as to the reasonableness and practicability of relocation, it was, therefore, reasonably open to the Tribunal to conclude that the applicant did not satisfy either of the two criteria set out at s.36(2) of the Act for the grant of the protection visa.

5. The applicant’s restatement of his objections to relocation, both in his amended application, and orally before the Court, can only reasonably be seen, in the circumstances, as a request for the Court to intervene and engage in impermissible merits review.  In essence, the applicant’s disagreement with the Tribunal’s findings does not reveal jurisdictional error.  As the Minister, in my view, correctly submits, this is not a case where the Tribunal has failed to ask the right question or misapplied the law.

6. I note, for the sake of completeness, that some of the applicant’s assertions in his ground appear to question the basis of some of the Tribunal’s findings of fact.  For example, particular one of the first ground asserts that the applicant “does not speak perfect Urdu”.  It is the case that on the evidence the Tribunal made no finding that the applicant spoke perfect Urdu.  Rather, the Tribunal found that he spoke Urdu and English.  This finding was based on information that the applicant himself gave in his application for the protection visa (see CB 31 at item 12).

7. On the evidence before the Court, all of the Tribunal’s relevant findings of fact in relation to the question of relocation were reasonably open to it, and probative of the material that was before it.  It must be said that this only serves to emphasise that ground one, in essence, seeks impermissible merits review from this Court, and cannot succeed in revealing jurisdictional error.

8. The second ground of the application (the ground numbered “4”), asserts that the applicant was not afforded natural justice.  The particulars to the ground appear to seek to explain this as an allegation of bias on the part of the Tribunal because the Tribunal did not accept his evidence. Contrary to the implication in the ground, it is clear that the Tribunal did accept much of the applicant’s evidence.  This is not a case where the Tribunal found adversely to the applicant because it did not believe what he had said.

9. The Tribunal said it found the applicant to be a credible witness.  The Tribunal did not find the applicant’s evidence as to relocation to lack credibility.  Rather, it’s conclusion as to relocation was based on a series of findings as to the reasonableness and practicality of relocation, given what the applicant had said, and in light of country information otherwise before the Tribunal.

10. As the Minister correctly submits, an allegation of bias is a serious charge to bring against the Tribunal member.  This is because, unlike other allegations of legal error, an allegation of bias is an attack upon the integrity of the Tribunal member.  In that light, and as the High Court has made clear, such allegations must be distinctly made and clearly proved (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] and [127]). The applicant’s ground does not satisfy the first part of that requirement, and it most certainly cannot meet the second on the evidence before the Court.

11. The applicant’s disagreement with the Tribunal’s unfavourable conclusion is not sufficient to indicate any pre-judgment of the applicant’s claims on the part of the Tribunal.  It may well be, as the applicant’s particulars state, that the applicant has a legitimate expectation to seek protection in Australia, but there is no legitimate expectation that merely seeking protection in Australia means that protection will automatically be given.

12. For the applicant’s understanding in particular, I note that the question as to the grant of the protection visa is to be determined, as ultimately in this case as was done by the Tribunal, by having regard to the claims and evidence put before the relevant decision maker. That is, the Tribunal, properly applying the law, making findings of fact that are reasonably open to make on the material before it, and then to either reach, or not reach, pursuant to s.65 of the Act, the requisite level of satisfaction that the applicant meets either one of the criteria that are set out at s.36(2) of the Act for the grant of the protection visa.

13. The applicant’s legitimate expectation can only properly extend to the Tribunal making a lawful decision.  It cannot extend to the Tribunal making the decision that the applicant would prefer.  While the particulars to the applicant’s ground clearly did not focus on the processes adopted by the Tribunal, nonetheless, the phrase “natural justice” should be addressed by this Court.

14. As the Minister again correctly submits, this is a case to which s.422B of the Act applies to make the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, that is, in relation to the matters that are dealt with in that division (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252).

15. In this regard, I note on the evidence that the applicant was invited to a hearing pursuant to s.425 of the Act. The issue that was determinative or dispositive of the review, that is, relocation within Pakistan, was, on the evidence before the Court, discussed at the hearing. The applicant was given the opportunity to give his evidence and make his arguments in this regard. No failure of natural justice or procedural fairness can be discerned in what the Tribunal has done.

16. I should note, for the sake of completeness, that on the evidence before the Court the applicant was given the opportunity pursuant to s.424A of the Act, by letter sent to him on 23 September 2014, to comment on information available to the Tribunal that the applicant’s wife and child, who had initially also been applicants for protection visas, had departed Australia for Malaysia.

Conclusion

1. In all, therefore, neither of the applicant’s grounds of the amended application reveal jurisdictional error in the Tribunal’s decision. Nothing that the applicant has said to the Court today reveals jurisdictional error on the part of the Tribunal. Nor can I otherwise see, having regard to the evidence before the Court, that the Tribunal otherwise fell into any jurisdictional error.

2. For that reason, the application to the Court, as amended, must be dismissed. I will make the appropriate order.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 19 October 2016